Evart v Gerta Gente, LLC

2023 NY Slip Op 34579(U)

January 5, 2023

Supreme Court, New York County

Docket Number: Index No. 101138/2022

Judge: Mary V. Rosado

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
INDEX NO. 101138/2022

NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/05/2024

1 of 5

PRESENT: 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

HON. MARY V. ROSADO PART 

Justice 

33M 

·····-·························----··-······-······-··········-··X INDEX NO. 

MOTION DATE 

MOTION SEQ. NO . 

101138/2022 

CLAUDIA EVART, 

Plaintiff, 

• V . 

GERTA GENTE, LLC. 

Defendant. 

·····························-·-·-·-·-·························---X 

02/02/2023 

001 

DECISION + ORDER ON 

MOTION 

The following e•filed documents. listed by NYSCEF document number (Motion 001 ) 9, 10, 11, 12, 13, 14, 

15, 16, 17, 18, 19, 20, 21, 22. 23, 24, 25, 26, 27 

were read on this motion to/for DISMISS 

Upon the foregoing documents, and al1er oral argument which occurred on August 16, 

2023 with Jose A. Muniz, F.sq. appearing for Plaintiff Claudia Evart ("Plaintiff') and Scolt R. 

Dinstcll, Esq. appearing for Defendant Certa Gentc, LLC rDcfcndant"), Defendant's motion 

seeking summary judgment in favor of, and dismissal of all claims against Defendant, is granted. 

I. Background ancl Procedural History 

This action concerns a motor vehicle accident alleged to have occurred on March 23, 

2015 (NYSCEF Doc. 6 at 19). Plaintiff: pro se. commenced this lawsuit by filing a Summons 

with Notice with the New York County Clerk's Office on December 5, 2022 (NYSCEF Doc. 

12). On December 23, 2022, Plaintiff served a Complaint and Jury Demand on Defendant 

(NYSCF.F Doc. 15). 

Plaintiff's Complaint asserts that Defendant is an Ttalian Restaurant in New York City, 

owned and operated by Franco Lazzari ("Lazzari''), Stafano Terri ('Terzi") and Daniel Kucera 

("Kucera") (NYSCEF Doc. 6 at ~4). Plaintiff claims that on March 23, 2015, a vehicle owned by 

Terzi and operated by Lazzari (the "Vehicle"), struck Plaintiff while Plaintiff was lawl'ully 

101138/2022 EVART, CLAUDIA vs. CERTA GENTE, LLC 

Motion No. 001 

Page 1 of 5 

[* 1]
INDEX NO. 101138/2022

NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/05/2024

2 of 5

walking up Park Avenue in New York City (the "Accident") (NSYCEF l)oc. 6 at ,19). Plaintiff 

claims that she was struck by the Vehicle " lsJolely by reason of [Lazzaril and lTer1/.i'sJ 

ncg,ligcncc in the ownership, operation and control" of the Vehicle (NYSCEF Doc. 6 at • 12). 

Plaintiff claims that l)cfcndant is vicariously liable [or Plaintiff's alleged injuries under a theory 

of negligent cntrusuncnt (NYSCEF Doc. 6 at~ 18). 

Previously. on October 29, 2015, Plaintiff filed a separate lawsuit against l.a,,_.zari and 

Ter,;i in the Kew York County Supreme Court, captioned Claudia Hvar1 v S,ejano Terzi and 

1-i·anco La:zari. bearing Index ;,lumber 161123,'20 IS (the "Previous Action"') (NYSCF.F Doc. 

23). Plaintitrs Complaint in the Previous Action asserted claims for negligence against Lazzari 

and Tcrzi for allegedly causing Plaintiff's \-larch 23, 2015 Accident (NYSCEF Doc. 23 at ,16). 

At an appearance before I Ion. James G. Clynes on July 14, 2022, Plaintiff settled the Previous 

Action with Lazzari and Tcrzi, agreeing to accept $250,000.00 in exchange lbr extinguishing her 

claims against them (NYSCEF Doc. 24). 

On February 2, 2023 Defendant commcncc-d the instant motion seeking an Order granting 

summary judgment in favor of Defendant and against Plaintiff, and dismissing all claims against 

Defendant on the ground that the applicable statute of limitations expired prior to Plaintiff filing 

suit (NYSCF.F Doc. I 0). In support of its motion for summary judgment. Defendant filed an 

Affirmation in Support on February 2, 2023 (NYSCEF Doc. 10). Plaintiff, prose. filed an 

A ffim1ation in Opposition on April 20. 2023 (NYSCF.F Doc. 19). Defendant filed a Reply 

Affirmation on April 25, 2023 (NYSCEF Doc. 22). 1 On July 25. 2023, .lose A. Muniz, Esq. filed 

a Notice of Appcarnnce on behalf of Plaintiff (l\YSCEF Doc. 28). 

1 11 is noted Iha! Plainiiff li lcd a Sur-Reply on July 3, 2023 (NYSCEI' IJoc. 27). The Pa,1 33 Rules stale lhal " [n)o 

sur-rcply papers arc pcrrnillcd" and " [m)a1crials submined in violation of ihis rule will he disrcgurdcd by the Cou11.'' 

According!)', Plaintifrs July 3, 2023 Sur-Reply will not be considered. 

101138/2022 EVART. CLAUDIA vs. CERT A GENTE, LLC 

Motion No. 001 

Page 2 of 5 

[* 2]
INDEX NO. 101138/2022

NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/05/2024

3 of 5

II. Discussion 

A. Plaintiffs Personal Injury Claims A!!ainst Defendant arc 13an:ed bv Res Judicata 

In Kew York, res j11dicara "bars successive litigation based upon the same transaction or 

series of connected transactions•· (Mauer of People of the Suue of New York, by Fliot Spitzer, as 

Attorney Gen. v Applied Card Sys., inc., 11 NY3d 105, 122 [2008]. Further, "settlement 

agreements arc entitled lo res j udicata effect" (Id. at 124 citing Oly111pic Tower Assocs v. New 

York, 81 NY2d 961 fl 9931). For resj11dica1a to apply, the party against whom the doctrine is 

invoked must have been a party to the previous action, or in privily with a party who was (Id. at 

122). The Court of Appeals has held that '·[gjenerally, to establish privily the com1cction 

between the parties must be such that the interest of the nonparty can be said to have been 

represented in the prior proceeding" (Green v Santa Fe Industries. Inc., 70 NY2d 244 [ 1987j). 

Herc, Plaintifl's claims stem from the same March 23, 20 15 /\ccidelll as those in the 

Previous Action. Further. Plaintiff assens in his Complaint that Defendant is owned and operated 

by Lazzari and Terzi, the two defendants in the Previous Action. Accordingly, the interests of 

Defendant were represented in the Previous Action. As such. the sculcment of the Previous 

Action is entitled to res judicata precluding Plaintifl's from asserting the instant claims, which 

stem from the same transaction al; the previously settled action, against Defendant, who is in 

privit:y with the de rendants in the Previous Action. 

ll. Defendant's Motion for Summarv Judgnient is Granted 

Summary judgment is a drastic remedy, to be granted only where lhc moving party has 

tendered sunicient evidence to demonstrate the absence of any material issues of fact." (Vega v 

Restani Const. Corp. , 18 NY3d 499. 503 120121). The moving party's ·'burden is a heavy one and 

on a motion for summary judgment, facts must be viewed in the light most favorable to the non101 13812022 EVART, CLAUDIA vs. CERTA GENTE, LLC 

Motion No, 001 

Page 3 of 5 

[* 3]
INDEX NO. 101138/2022

NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/05/2024

4 of 5

moving party." (.Jacobsen v New York City Health and 1/osps. Corp. , 22 NY3d 824, 833120141). 

Once this showing is made, the burden shifts to the party opposing the motion to produce 

cvi<lentiary proof, in admissible form, suflicient to establish ihc existence of material issues of fact 

which require a trial (see e.g, Zuckerman v City of New York, 49 l\Y2d 557. 562 [1980J: 

Pemberton,. New York City Tr. Auth., 304 AD2d 340,342 fl" Dept 20031). Mere conclusions of 

law or fact arc insufficient to defeat a motion for summary judgment (see Banco Popular North 

Am. ,, Victory Taxi Mgt .. Inc .. 1 NY3d 381 [20041). 

Herc, the record establishes that Defendant is in privily with La;,.7.ari and Tcrzi, as Lazzari 

and Tcrzi arc two or the three principal owners and operators of Defendant (NYSCEF Doc. 6 at 

1[4). Further. Plaintifrs claim in this action stems from the same Accident as that in his Previous 

Action. As it is well setlle<l that settlement agreements arc afforded prcclusivc effect pursuant to 

resj11dicata, scltlement of the Previous Action serves l<) har Plaintiffs claims against Dcl"c11dan1 

in this case. 

As Plaintiff has faiJc.d to produce evidentiary proof, in admissible form, sullicicnt io 

establish the existence of material issues of fact, Defendant's motion for summary judgment 

dismissing Plaintiff's claims against ii is granted. 

Accordingly. it is hereby, 

ORDERED that Defendant Cena Genie, I.I.C's motion for summary judgment is granted, 

and PlaintifT Claudia Evart's Complaint and all claims against Defcndam arc dismissed; and it is 

further 

ORDERED that within ten days or entry, eoUJ1scl for Defendant shall serve a copy of this 

Decision and Order on Plaintiff; and it is further 

101138/2022 EVART. CLAUDIA vs. CERTA GENTE, LLC 

Motion No. 001 

Pago4 of5 

[* 4]
INDEX NO. 101138/2022

NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/05/2024

5 of 5

ORDF.RED Lhat the Clerk of Lhc Court is directed to enter judgment accordingly. 

This constiLutcs the Decision and Order of the Court. 

1/5/2023 

DATE 

CHECK ONE: x CASE OlSPOSEO 

a GRANTED □ DENIED 

APPUCATIOH: SETTLE ORDER 

CHECK fF APPAOPRfATE: lNCLUOES TRAHSFERJREASSIGN 

10113812022 EVART, CLAUDIA vs. CERTA GENTE, LLC 

Motion No. 001 

/11~ V ;,, ,..,. J \. <.. 

HON. MXRY V. ROSADO, J .S.C. 

NON-FINAL DISPOSITION 

GRANTED lN PART 

SVBMIT OflOER 

FIOUC1ARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

Pago 5 of 5 

[* 5]